1. APPLICATIONS AND SUPPORT
1.1 Services. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will make the Applications available to Customer as a service, along with related support services (the “Services”). TAP may provide the Applications and Services using its own infrastructure or using a third party cloud computing services provider. TAP may, in its sole discretion, modify, enhance and/or expand the Applications at no additional cost to Customer. TAP may also modify, enhance or expand the Applications by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the parties. Customer acknowledges that its purchase of the Services hereunder are not contingent on the delivery of any future functionality or features in any of the Applications.
1.2 License Grant. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees, TAP hereby grants to Customer, during the Term of this Agreement, a limited, non-exclusive, non-sublicensable and non-transferrable license to access and use the Applications in the manner provided by TAP, solely for Customer’s own internal business operations.
1.3 Availability. TAP will use commercially reasonable efforts to make the Applications available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which TAP will provide at least 8 hours electronic notice and which TAP will schedule, to the extent practicable, outside of normal office hours), and (b) any unavailability caused by circumstances beyond TAP’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving TAP’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack.
1.4 Support. Subject to all of the terms of this Agreement, including Customer’s timely payment of Fees (as defined herein), TAP will provide Customer with standard technical support services in accordance with TAP’s Application support program, as published by TAP from time-to-time. TAP’s current Application support program will be provided on request. TAP has the right to change, modify or amend its Application support program at any time in its sole discretion. Additional or upgraded support services may be available for an additional fee.
1.5 Professional Services. From time to time, so long as this Agreement remains in full force and effect, TAP and Customer may, but are under no obligation to, enter one or more statements of work (each, an “SOW”) to engage set-up, implementation, consulting or other professional services (“Professional Services”) by TAP. Professional Services will only be provided pursuant to a signed SOW, which may be included as part of an Order From. Each SOW shall contain, at a minimum, the following information: (a) the scope of the Professional Services to be provided; (b) applicable rates and fees; (c) responsibilities and dependencies of each party; (d) agreed upon work product and specific deliverables, if any; and (e) signatures of authorized representatives. TAP have no obligation to provide Professional Services without a fully-executed SOW. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), shall become effective upon execution by authorized representatives of both parties.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Access to the Applications is subject to usage limits that are specified in the Order Forms. Unless otherwise specified in the applicable Order Form, Applications and Services are purchased as monthly user subscriptions and the Applications may not be accessed by more than the number of users (each a “User”). If Customer exceeds a contractual usage limit, TAP may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding these efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of Users promptly upon request, and/or pay any invoice for excess usage in accordance with this Agreement. Additional Users may be purchased during the Term by signing an additional Order Form and paying the additional fees for such additional Users.
2.3 Customer will not, directly or indirectly, do any of the following: (a) make any Applications available to, or use any Applications for the benefit of, anyone other than Customer or its authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Applications; (c) use the Applications to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of any the Applications; (e) attempt to gain unauthorized access to any Applications; or (f) permit direct or indirect access to or use of any Applications in a way that circumvents a contractual usage limit.
2.4 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Applications, or any documentation or data related thereto; (b) modify, translate, or create derivative works based on the Applications (except to the extent expressly permitted by TAP or authorized within the Services); (c) use any Applications for timesharing or service bureau purposes or otherwise for the benefit of a third; or (d) remove any proprietary notices or labels. With respect to any Applications that is distributed or provided to Customer for use on Customer premises or devices, TAP hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Applications during the Term only in connection with the Services.
2.5 Customer may not remove or export from the United States or allow the export or re-export of Applications or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.6 Although TAP has no obligation to monitor Customer’s use of the Applications, TAP may do so and may prohibit any use of the Applications it believes may be (or alleged to be) in violation of this Section 2 or any other provision in this Agreement.
2.7 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Applications, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of TAP includes non-public information regarding features, functionality and performance of the Applications. Proprietary Information of Customer includes non-public data provided by Customer to TAP to enable the provision of the Applications (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect the Proprietary Information of the Disclosing Party; and (ii) not to use (except in performance of the Applications or as otherwise permitted herein) or divulge to any third person the Proprietary Information of the Disclosing Party. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Applications. TAP shall own and retain all right, title and interest in and to (a) the Applications and the Services, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Customer hereby grants TAP a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services and/or Applications any suggestions, enhancement requests, recommendations, correction or other feedback provided by Customer, including Users, relating to the functionality and/or operation of the Services and/or Applications.
3.4 Notwithstanding anything to the contrary, TAP shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Applications and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and TAP shall also have the right (during and after the Term hereof) to (a) use such information and data to improve and enhance the Applications and for other development, diagnostic and corrective purposes in connection with the Applications and other TAP offerings, and (b) disclose such data, so long as it doesn’t otherwise disclose the Proprietary Information of Customer.
3.5 No rights or licenses are granted except as expressly set forth herein.
4. FEES AND PAYMENT FOR APPLICATIONS
4.1 Customer will pay TAP the applicable fees described in the Order Form for the Applications, Services and Professional Services in accordance with the terms of this Agreement (the “Fees”).
4.2 TAP will invoice Customer for Fees due under this Agreement. All invoices are due and payable within thirty (30) days following Customer’s receipt of the invoice. Unpaid amounts are subject to an interest charge of 1% per month on any outstanding balance, or the maximum permitted by law. Customer shall reimburse TAP for all expenses of collection of past due amounts.
4.3 Customer is responsible for all taxes associated with Applications and Services other than U.S. taxes based on TAP’s net income
4.4 If Customer’s use of the Applications exceeds any of the limitations set forth on the Order Form or otherwise requires the payment of additional Fees, Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein.
4.5 TAP reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.6 If Customer believes that TAP has billed Customer incorrectly, Customer must contact TAP no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to TAP’s customer support department.
4.7 If any amount owing by Customer is thirty (30) or more days overdue, TAP may, without limiting its other rights and remedies, suspend the Customer’s access to the Applications until such amounts are paid in full.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods renewal periods as specified in the Order Form (collectively, the “Term”), unless either party gives written notice of non-renewal to the other party at least ninety (90) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or five (5) days’ written notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Applications up to and including the last day on which the Applications are provided.
5.3 This Agreement may be terminated immediately by a party through written notice if the other party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
5.4 TAP will make all Customer Data available to Customer for electronic retrieval within ninety (90) days following the date of termination of this Agreement. TAP will notify Customer when Customer Data is available for electronic retrieval, and Customer shall have at least thirty (30) days following such notice to retrieve its Customer Data; thereafter, TAP may, but is not obligated to, delete stored Customer Data.
5.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. TAP WARRANTIES; DISCLAIMER
6.1 TAP shall use reasonable efforts consistent with prevailing industry standards to maintain the Applications in a manner which minimizes errors and interruptions in the Applications and shall perform the Professional Services in a professional and workmanlike manner. Applications may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by TAP or by third-party providers, or because of other causes beyond TAP’s reasonable control, but TAP shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, TAP DOES NOT WARRANT THAT THE APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATIONS.
6.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE APPLICATIONS, SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND TAP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Mutual Indemnity. Each party (“Indemnifying Party”) shall indemnify and defend the other party and its officers, directors, shareholders, members, managers, employees, agents and affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement, which result in death, personal injury or property damage; provided that (a) the Indemnified Party gives the Indemnifying Party prompt notification in writing of any such claim and reasonable assistance, at the Indemnifying Party’s expense, in the defense of such claim; and (b) the Indemnifying Party has the sole authority to defend or settle such claim as long as such settlement shall not impose a financial obligation on, or include an admission of liability by, the Indemnified Party.
8. LIMITATION OF LIABILITY
8.1 TAP AND ITS LICENSORS AND SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR SPECIAL DAMAGES; (B) LOSS OF BUSINESS BY CUSTOMER, ERROR OR INTERRUPTION OF USE OF THE APPLICATIONS OR SERVICES, LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (C) ANY MATTER BEYOND TAP’S REASONABLE CONTROL; IN EACH CASE, WHETHER OR NOT TAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 TAP AND ITS LICENSORS AND SUPPLIERS ARE NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR OTHER LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT EXCEED, IN THE AGGREGATE (WHEN TAKEN TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS) THE FEES PAID BY CUSTOMER TO TAP FOR THE APPLICATIONS AND SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE EVENT OR ACT THAT GAVE RISE TO THE LIABILITY.
8.3 The limitations on liability in this Section 8 do not apply: (a) to claims based on personal injury or death; (b) in the event of gross negligence on the part of TAP or its licensors or suppliers; or (c) if prohibited by applicable law.
9.1 To the extent a Customer purchase order or similar document contains terms and conditions that are different from or inconsistent with this Agreement, such terms are hereby rejected and this Agreement shall control over any such different or inconsistent terms.
9.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.3 This Agreement is not assignable, transferable or sublicensable by Customer except with TAP’s prior written consent. TAP may transfer and assign any of its rights and obligations under this Agreement without consent.
9.4 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.6 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of law’s provisions. The United Nations Conventions on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.7 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
9.8 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind TAP in any respect whatsoever.